MISSISSIPPI LEGISLATURE
2019 Regular Session
To: Finance
By: Senator(s) Hill
AN ACT TO AMEND SECTION 85-3-1, MISSISSIPPI CODE OF 1972, TO REVISE THE EXEMPTIONS FROM EXECUTION OR ATTACHMENT THAT RELATE TO CERTAIN PAYMENTS TO RETIREES; TO AMEND SECTION 5-8-13, MISSISSIPPI CODE OF 1972, TO PROHIBIT A REGISTERED TAX OFFENDER FROM ACTING AS A LOBBYIST; TO AMEND SECTION 97-11-29, MISSISSIPPI CODE OF 1972, TO CREATE THE MISSISSIPPI GOVERNMENT TAX OFFENDER REGISTRY AND TO REQUIRE THOSE CONVICTED OF EMBEZZLEMENT OR OTHER UNLAWFUL CONVERSION OF PUBLIC FUNDS TO REGISTER; TO AMEND SECTION 11-35-11, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR SERVICE OF WRITS OF GARNISHMENT AGAINST THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM IF A RETIREE IS ORDERED TO PAY RESTITUTION UPON CONVICTION OF EMBEZZLEMENT OR OTHER UNLAWFUL CONVERSION OF PUBLIC FUNDS; TO AMEND SECTION 99-37-5, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE ATTORNEY GENERAL TO INITIATE GARNISHMENT PROCEEDINGS AGAINST AMOUNTS OWED BY THE MISSISSIPPI PUBLIC EMPLOYEES' RETIREMENT SYSTEM TO A RETIREE WHO HAS BEEN ORDERED TO PAY RESTITUTION UPON CONVICTION OF EMBEZZLEMENT OR OTHER UNLAWFUL CONVERSION OF PUBLIC FUNDS; TO AMEND SECTIONS 25-11-120, 25-11-129 AND 25-11-319, MISSISSIPPI CODE OF 1972, TO CONFORM PROVISIONS REGARDING THE MISSISSIPPI PUBLIC EMPLOYEES' RETIREMENT SYSTEM; TO BRING FORWARD SECTION 25-1-113, MISSISSIPPI CODE OF 1972, FOR POSSIBLE AMENDMENT TO CLARIFY THE INELIGIBILITY FOR PUBLIC EMPLOYMENT OF A PERSON WHO HAS BEEN CONVICTED OF OR PLED GUILTY TO ANY FELONY IN WHICH PUBLIC FUNDS WERE UNLAWFULLY TAKEN, OBTAINED OR MISAPPROPRIATED IN THE ABUSE OR MISUSE OF THE PERSON'S OFFICE OR EMPLOYMENT OR MONEY COMING INTO THE PERSON'S HAND BY VIRTUE OF THE PERSON'S OFFICE OR EMPLOYMENT IN ANY STATE OR FEDERAL COURT; TO BRING FORWARD SECTION 97-11-25, MISSISSIPPI CODE OF 1972, FOR POSSIBLE AMENDMENT TO CLARIFY THE PROHIBITION AGAINST EMBEZZLEMENT OF PUBLIC FUNDS; TO BRING FORWARD SECTION 97-11-27, MISSISSIPPI CODE OF 1972, FOR POSSIBLE AMENDMENT TO CLARIFY THE REQUIREMENT THAT OFFICERS AND PUBLIC AGENTS DELIVER MONEY AND RECORDS TO THEIR SUCCESSORS; TO BRING FORWARD SECTION 97-11-31, MISSISSIPPI CODE OF 1972, FOR POSSIBLE AMENDMENT TO CLARIFY THE PUNISHMENT FOR EMBEZZLEMENT AND FRAUD COMMITTED WHILE IN PUBLIC OFFICE; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 85-3-1, Mississippi Code of 1972, is amended as follows:
85-3-1. There shall be exempt from seizure under execution or attachment:
(a) Tangible personal property of the following kinds selected by the debtor, not exceeding Ten Thousand Dollars ($10,000.00) in cumulative value:
(i) Household goods, wearing apparel, books, animals or crops;
(ii) Motor vehicles;
(iii) Implements, professional books or tools of the trade;
(iv) Cash on hand;
(v) Professionally prescribed health aids;
(vi) Any items of tangible personal property worth less than Two Hundred Dollars ($200.00) each.
Household goods, as used in this paragraph (a), means clothing, furniture, appliances, one (1) radio and one (1) television, one (1) firearm, one (1) lawn mower, linens, china, crockery, kitchenware, and personal effects (including wedding rings) of the debtor and his dependents; however, works of art, electronic entertainment equipment (except one (1) television and one (1) radio), jewelry (other than wedding rings), and items acquired as antiques are not included within the scope of the term "household goods." This paragraph (a) shall not apply to distress warrants issued for collection of taxes due the state or to wages described in Section 85-3-4.
(b) (i) The proceeds of insurance on property, real and personal, exempt from execution or attachment, and the proceeds of the sale of such property.
(ii) Income from disability insurance.
(c) All property in this state, real, personal and mixed, for the satisfaction of a judgment or claim in favor of another state or political subdivision of another state for failure to pay that state's or that political subdivision's income tax on benefits received from a pension or other retirement plan. As used in this paragraph (c), "pension or other retirement plan" includes:
(i) An annuity, pension, or profit-sharing or stock bonus or similar plan established to provide retirement benefits for an officer or employee of a public or private employer or for a self-employed individual;
(ii) An annuity, pension, or military retirement pay plan or other retirement plan administered by the United States; and
(iii) An individual retirement account.
(d) One (1) mobile home, trailer, manufactured housing, or similar type dwelling owned and occupied as the primary residence by the debtor, not exceeding a value of Thirty Thousand Dollars ($30,000.00); in determining this value, existing encumbrances on the dwelling, including taxes and all other liens, shall first be deducted from the actual value of the dwelling. A debtor is not entitled to the exemption of a mobile home as personal property who claims a homestead exemption under Section 85-3-21, and the exemption shall not apply to collection of delinquent taxes under Sections 27-41-101 through 27-41-109.
(e) (i) Except as
provided in subparagraph (ii) of this paragraph (e), assets held in, or
monies payable to the participant or beneficiary from, whether vested or not, * * * 1. a pension, profit-sharing, stock
bonus or similar plan or contract established to provide retirement benefits
for the participant or beneficiary and qualified under Section 401(a), 403(a),
or 403(b) of the Internal Revenue Code (or corresponding provisions of any
successor law), including a retirement plan for self-employed individuals
qualified under one (1) of such enumerated sections, * * * 2. an eligible deferred compensation
plan described in Section 457(b) of the Internal Revenue Code (or corresponding
provisions of any successor law), or * * * 3. an individual retirement account
or an individual retirement annuity within the meaning of Section 408 of the
Internal Revenue Code (or corresponding provisions of any successor law),
including a simplified employee pension plan.
(ii) The exemption provided in this paragraph (e) does not apply to a case of garnishment for restitution ordered by a court, whether state or federal, against any government retiree who has been convicted of embezzlement or other unlawful conversion of public funds and who is being paid a retirement benefit by the Mississippi Public Employees' Retirement System.
(f) Monies paid into or, to the extent payments out are applied to tuition or other qualified higher education expenses at eligible educational institutions, as defined in Section 529 of the Internal Revenue Code or corresponding provisions of any successor law, monies paid out of the assets of and the income from any validly existing qualified tuition program authorized under Section 529 of the Internal Revenue Code or corresponding provisions of any successor law, including, but not limited to, the Mississippi Prepaid Affordable College Tuition (MPACT) Program established under Sections 37-155-1 through 37-155-27 and the Mississippi Affordable College Savings (MACS) Program established under Sections 37-155-101 through 37-155-125.
(g) The assets of a health savings account, including any interest accrued thereon, established pursuant to a health savings account program as provided in the Health Savings Accounts Act (Sections 83-62-1 through 83-62-9).
(h) In addition to all other exemptions listed in this section, there shall be an additional exemption of property having a value of Fifty Thousand Dollars ($50,000.00) of whatever type, whether real, personal or mixed, tangible or intangible, including deposits of money, available to any Mississippi resident who is seventy (70) years of age or older.
(i) An amount not to exceed Five Thousand Dollars ($5,000.00) of earned income tax credit proceeds.
(j) An amount not to exceed Five Thousand Dollars ($5,000.00) of federal tax refund proceeds.
(k) An amount not to exceed Five Thousand Dollars ($5,000.00) of state tax refund proceeds.
(l) Subject to the provisions of Section 27-7-1003(2), the assets of a catastrophe savings account, including any interest accrued thereon, established under Sections 27-7-1001 through 27-7-1007.
(m) Nothing in this section shall in any way affect the rights or remedies of the holder or owner of a statutory lien or voluntary security interest.
SECTION 2. Section 5-8-13, Mississippi Code of 1972, is amended as follows:
5-8-13. (1) A lobbyist shall not contract to receive or accept compensation dependent upon the success or failure of a legislative or executive action.
(2) A lobbyist or lobbyist's client shall not knowingly or willfully make or cause to be made a false statement or misrepresentation of facts to an executive, legislative or public official or public employee, or to the public in general with the intent to affect the outcome of a legislative or executive action.
(3) A lobbyist or lobbyist's client shall not cause a legislative or executive action for the purpose of obtaining employment to lobby in support of or in opposition to the legislative or executive action.
(4) An executive, legislative or public official or public employee shall not be a lobbyist, except that he may act as a lobbyist when acting in his official capacity.
(5) A lobbyist must disclose anything of value given in whole or in part to any executive, legislative or public official or public employee.
(6) A person who is required to register on the government tax offender registry created under Section 97-11-29 shall not act as or be employed to act as a lobbyist.
SECTION 3. Section 97-11-29, Mississippi Code of 1972, is amended as follows:
97-11-29. (1) The
State Treasurer, Auditor of Public Accounts, assessors and collectors of taxes,
and all other state and county officers, and officers of cities, towns and
villages, shall make and keep in their offices, subject to inspection at all
times, an accurate entry of each and every sum of public money, securities,
stocks, or other public money whatever, by them received, transferred, or disbursed;
and if any of said officers, either municipal, county or state, or a clerk,
agent or employee of such officers, shall willfully and fraudulently make any
false entry therein or make any certificate or endorsement of any warrant on
the Treasury that the same is genuine, when the same is in fact not a genuine
warrant, or shall loan any portion of the public * * * monies, securities, stocks, or
other public property intrusted to him, for any purpose whatever, or shall, by
willful act or omission of duty whatever, defraud, or attempt to defraud, the
state, or any county, city, town or village, of any * * * monies, security, or property,
he shall, on conviction thereof, be guilty of embezzlement, and fined not less
than double the amount or value of the * * * monies, security, stock or other
property so embezzled, or committed to the Department of Corrections for not
more than ten (10) years, or both.
(2) (a) (i) Any person convicted in this state under this section, Section 97-11-25, 97-11-27, or 97-11-31, or any other offense of embezzlement or other unlawful conversion of public money, whether under state or federal law, shall register as a government tax offender with the Secretary of State for eight (8) years subsequent to conviction.
(ii) Registration information shall include:
1. Name, including a former name that has been legally changed;
2. Street address of all current permanent and temporary residences;
3. Crime for which convicted;
4. Date and place of conviction;
5. Aliases or nicknames, ethnic or tribal names by which commonly known;
6. Age, race, sex, height, weight, hair and eye colors, and any other physical description or identifying factors; and
7. Driver's license or state or other jurisdiction identification card number.
(b) The Secretary of State shall create and maintain a government tax offender registry in compliance with this subsection (2). A person who is required to register as a government tax offender under this subsection (2) shall be ineligible for registration as a lobbyist under Chapter 8, Title 5, Mississippi Code of 1972.
SECTION 4. Section 11-35-11, Mississippi Code of 1972, is amended as follows:
11-35-11. Service of
writs of garnishment on government employees and retirees. Service
of writs of garnishment upon judgments against any officer * * *, employee or retiree of the
state, a county, a municipality, any state institution, board, commission or
authority shall be effected as follows:
(1) In a case of garnishment against any employee of a state department, agency, board, commission, institution or other authority, the writ shall be served upon the department head, president of the institution or chairman or other presiding officer thereof. In case of a garnishment against a state officer, departmental head, president of an institution, director of a board, or other head of any other agency or commission of the state government, the writ shall be served upon the State Auditor. In case of a garnishment against the State Auditor, the writ shall be served upon the State Treasurer, this being the only case in which the State Treasurer is served with a writ of garnishment except where a garnishment is against an employee of the State Treasurer.
(2) In a case of * * * garnishment against any person who is now or
may hereafter be a salaried officer or employee of a county, the writ shall be
served upon the clerk of the chancery court of the county, except that in case
of garnishment upon a judgment against such clerk, the writ shall be
served upon the sheriff of the county.
(3) In a case of * * * garnishment against any person who is now or
may hereafter be a salaried officer or employee of a county school district or
a municipal separate school district, the writ shall be served upon the
superintendent of the respective school district, except in the event the
garnishment be against such superintendent, the writ shall be served
upon the president of the board of education or the board of trustees.
(4) In a case of * * * garnishment against an officer or employee of
a municipality, the writ shall be served upon the city, town or village clerk.
(5) In a case of garnishment for restitution ordered by a court, whether state or federal, against any government retiree who has been convicted of embezzlement or conversion of public funds and who is being paid a retirement benefit by the Mississippi Public Employees' Retirement System, the writ shall be served upon the Executive Director of the Mississippi Public Employees' Retirement System. The garnishment shall not exceed fifty percent (50%) per month of the monthly retirement benefit payable to the member owing the restitution.
SECTION 5. Section 99-37-5, Mississippi Code of 1972, is amended as follows:
99-37-5. (1) When a defendant is sentenced to pay a fine or costs or ordered to make restitution, the court may order payment to be made forthwith or within a specified period of time or in specified installments. If a defendant is sentenced to a term of imprisonment, an order of payment of a fine, costs or restitution shall not be enforceable during the period of imprisonment unless the court expressly finds that the defendant has assets to pay all or part of the amounts ordered at the time of sentencing.
(2) When a defendant sentenced to pay a fine or costs or ordered to make restitution is also placed on probation or imposition or execution of sentence is suspended, the court may make payment of the fine or costs or the making of restitution a condition of probation or suspension of sentence. Such offenders shall make restitution payments directly to the victim. As an alternative to a contempt proceeding under Sections 99-37-7 through 99-37-13, the intentional refusal to obey the restitution order or a failure by a defendant to make a good faith effort to make such restitution may be considered a violation of the defendant's probation and may be cause for revocation of his probation or suspension of sentence.
(3) When a defendant is sentenced to pay a fine or costs or ordered to make restitution in connection with a conviction for embezzlement or other unlawful conversion of public funds, the Attorney General may institute garnishment proceedings on behalf of any parties to whom such amounts are owed to recover the fine, costs and restitution as set forth in Section 11-35-11(5).
SECTION 6. Section 25-11-120, Mississippi Code of 1972, is amended as follows:
25-11-120. (1) Any individual aggrieved by an administrative determination, including a determination of the medical board, relating to the eligibility for or payment of benefits, or the calculation of creditable service or other similar matters relating to the Public Employees' Retirement System or any other retirement system or program administered by the board, may request a hearing before a hearing officer designated by the board. Such hearings shall be conducted in accordance with rules and regulations adopted by the board and formal rules of evidence shall not apply. The hearing officer is authorized to administer oaths, hear testimony of witnesses and receive documentary and other evidence. In case of disability appeals, the hearing officer shall have the authority to defer a decision in order to request a medical evaluation or test or additional existing medical records not previously furnished by the claimant. After the hearing and the receipt of any additional medical evidence requested by the hearing officer, the hearing officer shall certify the record to the board, which shall include the hearing officer's proposed statement of facts, conclusions of law and recommendation. The record may include a taped recording of the proceedings of the hearing in lieu of a transcribed copy of the proceedings. The board shall receive the record and make its determination based solely on matters contained therein.
(2) Any individual aggrieved by the determination of the board may appeal to the Circuit Court of the First Judicial District of Hinds County, Mississippi, in accordance with the Uniform Circuit Court Rules governing appeals to the circuit court in civil cases. Such appeal shall be made solely on the record before the board and this procedure shall be the exclusive method of appealing determinations of the board.
(3) The board is authorized to appoint a committee of the board to serve as hearing officer or to employ or contract with qualified personnel to perform the duties of hearing officer and court reporter as may be necessary for conducting, recording and transcribing such hearings. The board may assess and collect fees to offset costs related to such hearings. Those fees shall be deposited to the credit of the Public Employees' Retirement System.
(4) Interest shall not be paid on any benefits, including, but not limited to, benefits that are delayed as a result of an administrative determination or an appeal from an administrative determination.
(5) The garnishment of a portion of a member's retirement benefits from the Public Employees' Retirement System for restitution ordered by a court, whether state or federal, who has been convicted of embezzlement or other unlawful conversion of public funds is not considered an administrative determination for which a hearing may be requested or held under this section.
SECTION 7. Section 25-11-129, Mississippi Code of 1972, is amended as follows:
25-11-129. (1) The right of a person to an annuity, a retirement allowance or benefit, or to the return of contributions, or to any optional benefit or any other right accrued or accruing to any person under the provisions of Articles 1 and 3, the system and the monies in the system created by said articles, are hereby exempt from any state, county or municipal ad valorem taxes, income taxes, premium taxes, privilege taxes, property taxes, sales and use taxes or other taxes not so named, notwithstanding any other provision of law to the contrary, and exempt from levy and sale, garnishment, other than garnishment for restitution ordered by a court, whether state or federal, subsequent to a conviction of embezzlement or other unlawful conversion of public funds, attachment or any other process whatsoever, and shall be unassignable except as specifically otherwise provided in this article and except as otherwise provided in subsection (2) of this section.
(2) Any retired member or beneficiary receiving a retirement allowance or benefit under this article may authorize the system to make deductions from the retirement allowance or benefit for the payment of employer or system sponsored group life or health insurance. The deductions authorized under this subsection shall be subject to rules and regulations adopted by the board.
SECTION 8. Section 25-11-319, Mississippi Code of 1972, is amended as follows:
25-11-319. (1) The right of a person to an annuity, a retirement allowance or benefit, or to the return of contributions, or to any optional benefit or any other right accrued or accruing to any person under the provisions of the Supplemental Legislative Retirement Plan, and the monies in the plan created by this article, are exempt from any state or municipal tax, and exempt from levy and sale, garnishment, other than garnishment for restitution ordered by a court, whether state or federal, subsequent to a conviction of embezzlement or other unlawful conversion of public funds, attachment or any other process whatsoever, and shall be unassignable except as specifically otherwise provided in this article.
(2) Any retired member or beneficiary receiving a retirement allowance or benefit under this article may authorize the system to make deductions from the retirement allowance or benefit for the payment of employer or system sponsored group life or health insurance. The deductions authorized under this subsection shall be subject to rules and regulations adopted by the board.
SECTION 9. Section 25-1-113, Mississippi Code of 1972, is brought forward as follows:
25-1-113. (1) From and after July 1, 2013, the state and any county, municipality or any other political subdivision shall not employ a person who has been convicted or pled guilty in any court of this state, another state, or in federal court of any felony in which public funds were unlawfully taken, obtained or misappropriated in the abuse or misuse of the person's office or employment or money coming into the person's hands by virtue of the person's office or employment.
(2) From and after July 1, 2014, the state and any county, municipality or any other political subdivision shall not employ or continue to employ a person who has been convicted or pled guilty in any court of this state, another state, or in federal court of any felony in which public funds were unlawfully taken, obtained or misappropriated in the abuse or misuse of the person's office or employment or money coming into the person's hands by virtue of the person's office or employment.
SECTION 10. Section 97-11-25, Mississippi Code of 1972, is brought forward as follows:
97-11-25. If any state officer or any county officer, or an officer in any district or subdivision of a county, or an officer of any city, town or village, or a notary public, or any other person holding any public office or employment, or any executor, administrator or guardian, or any trustee of an express trust, any master or commissioner or receiver, or any attorney at law or solicitor, or any bank or collecting agent, or other person engaged in like public employment, or any other person undertaking to act for others and intrusted by them with business of any kind, or with money, shall unlawfully convert to his own use any money or other valuable thing which comes to his hands or possession by virtue of his office or employment, or shall not, when lawfully required to turn over such money or deliver such thing, immediately do so according to his legal obligation, he shall, on conviction, be committed to the Department of Corrections for not more than twenty (20) years, or be fined not more than Five Thousand Dollars ($5,000.00).
SECTION 11. Section 97-11-27, Mississippi Code of 1972, is brought forward as follows:
97-11-27. If any officer or agent of this state, or of any county or subdivision of a county, or of any city, town, or village therein, in whose hands money, books, records, papers, or anything else required by law to be delivered by him to his successor in office or other person authorized by law to receive or have charge of the same, may be, shall willfully and not in good faith refuse or neglect, on demand, to so deliver the same, he shall, on conviction, be imprisoned in the Penitentiary not more than ten (10) years, or be fined not more than One Thousand Dollars ($1,000.00) and be imprisoned in the county jail not more than one (1) year.
SECTION 12. Section 97-11-31, Mississippi Code of 1972, is brought forward as follows:
97-11-31. If any officer, or other person employed in any public office, shall commit any fraud or embezzlement therein, he shall be committed to the Department of Corrections for not more than ten (10) years, or be fined not more than Five Thousand Dollars ($5,000.00), or both.
SECTION 13. This act shall take effect and be in force from and after July 1, 2019.